National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd

[2012] FCAFC 59

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Interrogate

Catchwords

1. Intellectual Property
2. › Copyright
3. › Infringement
4. › Television broadcast and cinematograph film
5. › Copying by automated recording system
6. › Who is the 'maker' of the copy
7. › Whether service provider or subscriber or both jointly make the copy
8. › Copyright Act 1968 (Cth), ss 86, 87, 101
1. Intellectual Property
2. › Copyright
3. › Exceptions to infringement
4. › Private and domestic use
5. › Time-shifting
6. › Whether commercial service provider can invoke s 111 exception
7. › Whether exception limited to person who makes copy for their own private use
8. › Copyright Act 1968 (Cth), s 111
1. Statutory Interpretation
2. › Purposive construction
3. › Use of explanatory memoranda
4. › Whether explanatory memorandum to earlier draft of provision can be relied upon where provision subsequently amended in material respects
5. › Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB
1. Intellectual Property
2. › Copyright
3. › Joint infringement
4. › Common design
5. › Whether service provider and subscriber acted in concert to make copies
6. › Copyright Act 1968 (Cth), s 101

Quick Take

A commercial service provider that designs, operates and maintains an automated system to copy television broadcasts for subscribers is the 'maker' (or joint maker with the subscriber) of those copies for the purposes of ss 86, 87 and 101 of the Copyright Act 1968 (Cth), and cannot invoke the s 111 private and domestic use exception. The US 'volitional conduct' test from Cartoon Network (Cablevision) does not form part of Australian law. The s 111 exception is confined to the person who makes a copy for their own private and domestic time-shifting purposes and does not extend to commercial copying on behalf of individuals.